The Native Hawaiian Government Reorganization Act of 2009 (H.R. 2314) creates a separate, race-based government specifically for Native Hawaiians. This divisive legislation would allow this new government entity to be exempt from state taxes, set their own civil and possibly criminal jurisdictions apart from the State of Hawaii, and take ownership of lands currently owned by the state (and potentially the federal government). Up to 400,000 Native Hawaiians from across the country (not just those living in Hawaii) could be eligible to become members of this new governing entity. The House passed H.R. 2314 (245 yeas to 164 nays) on February 23, 2010 and the bill now goes to the Senate for consideration.
Native Hawaiians are not members of a tribe, therefore it is highly questionable whether Congress even has the power to recognize them as a separate governing entity under the Indian Commerce Clause (Article I, Section 8 of the Constitution).
Recent Supreme Court rulings such as Rice v. Cayetano in 2000 have called into question Congress’ ability to recognize Native Hawaiians as a governing entity. For example, the ruling in Rice v. Cayetano says:
“[I]t would be necessary to conclude that Congress, in reciting the purposes for the transfer of lands to the State— and in other enactments such as the Hawaiian Homes Commission Act and the Joint Resolution of 1993—has determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the State a broad authority to preserve that status. These propositions would raise questions of considerable moment and difficulty. It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes.”
In 2006, the Department of Justice (DOJ) expressed concerns that this Act creates an unconstitutional race-based entity. In a letter, DOJ wrote that this would “divide people by their race” and that the Supreme Court and lower Federal Courts have been invalidating state laws that provide race-based qualifications for certain state programs.
United States Commission on Civil Rights also strongly opposes this legislation based on grounds that is discriminates based on race. In a letter to members of Congress on August 28, 2009 they wrote that:
“We do not believe Congress has the constitutional authority to ‘reorganize’ racial or ethnic groups into dependent sovereign nations unless those groups have a long and continuous history of separate self-governance.”
The bill sets a precedent that could be used by other ethnic groups seeking recognition. Gail Heriot with the U.S. Commission on Civil Rights testified before the committee that:
“If ethnic Hawaiians can be accorded tribal status, why not Chicanos in the Southwest? Or Cajuns in Louisiana? Indeed, it is implausible to say that Congress has the power to confer this benefit only upon racial or ethnic groups, since ordinarily Congressional power is at its lowest ebb with issues that touch on race or ethnicity.”
The bill could exempt the Native Hawaiian governing entity from State laws, taxes or regulations. Because Native Hawaiians do not live in separate communities or on separate lands, this could result in neighbors living under different legal regimes. For example, a Native Hawaiian business owner could be exempt from a state sales tax while his competitor down the street is not.
Some advocates of Native Hawaiian recognition believe that Native Hawaiians never relinquished aboriginal claims to lands when Hawaii became part of the U.S. There are concerns that a federally recognized Native Hawaiian entity might, through filing lawsuits or petitioning Congress, seek to “recover” such lands and assert sovereignty over them.
Some Native Hawaiian activists have expressed the goal of creating an independent nation for Native Hawaiians – this bill could be the first step towards secession.
The State of Hawaii’s Office Hawaiian Affairs had a website dedicated to federal recognition of Native Hawaiians. In a section entitled, How will federal recognition affect me?, it stated:
“While the federal recognition bill authorizes the formation of a Native Hawaiian governing entity, the bill itself does not prescribe the form of government this entity will become. S.344 creates the process for the establishment of the Native Hawaiian governing entity and a process for federal recognition. The Native Hawaiian people may exercise their right to self-determination by selecting another form of government including free association or total independence.”